On the problem of scale: the inextricable link between environmental and constitutional laws

Gussen, Benjamen Franklen
(2015)
On the problem of scale: the inextricable link between environmental and constitutional laws.
New Zealand Journal of Public and International Law , 13 (1).
pp. 39-63.
ISSN 1176-3930

Abstract

This article argues not only that sustainability cannot occur without subsidiarity, but that subsidiarity guarantees sustainability. In order to respond effectively to ecological crises, decision-making has to devolve to local communities (as a body politic), while constitutionalising local adaptations protects the diversity of ecosystems. In essence, constitutional and environmental laws are inextricably linked. The article employs the complexity paradigm to explain this nexus between subsidiarity and sustainability. The main thesis is that subsidiarity to sustainability is what self-organisation is to emergence. Sustainability is a response to the problem of scale. It is a fitness trait that prevents highly complex systems from collapsing. The nation-state is a highly complex system within which cities function as attractors. Collapse of such systems would ensue if there were strong coupling between attractors (such coupling obtains in cities under legal monism). Only subsidiarity can make this eventuality improbable. Understanding the emergent properties of sustainability and the self-organising properties of subsidiarity entails a shift in policy emphasis towards the latter. The article delivers a historical reconstruction of the concepts of sustainability and subsidiarity to elucidate their interdependence and ends with a sketch of future global governance structures based on a subsidiarity where cities take the lead on sustainability.